5.1 Civil evidence - hearsay

Question 1

What is the general rule regarding the admissibility of evidence in civil proceedings?

Answer 1

Evidence is admissible if it is relevant to the facts in issue.

Question 2

Which provision allows hearsay evidence to be used in civil proceedings?

Answer 2

Section 1(1) Civil Evidence Act 1995
In civil proceedings evidence shall not be excluded on the ground that it is hearsay.

Question 3

What is hearsay evidence?

Answer 3

Section 1(2) Civil Evidence Act 1995 and CPR 33.1
In this Act—
(a)
“hearsay” means [1] a statement [2] made otherwise than by a person while giving oral evidence in the proceedings [3] which is tendered as evidence of the matters stated; and
(b)
references to hearsay include hearsay of whatever degree.

Question 4

Where are the procedural safeguards associated with using hearsay evidence to be found?

Answer 4

Sections 2-4 Civil Evidence Act 1995

CPR 33.2 and 4

Question 5

Where are the CPR rules on hearsay to be found?

Answer 5

Part 33 - Miscellaneous Rules about Evidence

Question 6

What must a party do to adduce hearsay evidence?

Answer 6

CPR 33.2
[If the the party adducing hearsay evidence is doing so via a witness statement, serving the witness statement is enough to give notice.

If the adducing party is not doing so, it must give notice to the other parties of its intention to rely on hearsay.]

Question 7

What are a party’s four options on receipt of notice of intention to adduce hearsay?

Answer 7

1. Request particulars - s.2(1)(b) CEA 1995;
2. Call for cross-examination - s.3 CEA 1995 (CPR 33.4);
3. Challenge the weight of hearsay evidence - s.4 CEA 1995;
4. Attack the credibility of an absent witness - s.5 CEA 1995 (CPR 33.5).

Question 8

Which Rule deals with a party’s power to call witnesses whose statements are adduced as hearsay evidence by the other side for cross-examination?

Answer 8

CPR 33.4
(2)
[must apply within 14 days of notice of intent to adduce hearsay]

Question 9

When a party challenges the weight of hearsay evidence, where are the factors for the court to consider set out?

Answer 9

Section 4 Criminal Evidence Act 1995
[for reference:]
(1)
In estimating the weight (if any) to be given to hearsay evidence in civil proceedings the court shall have regard to any circumstances from which any inference can reasonably be drawn as to the reliability or otherwise of the evidence.
(2)
Regard may be had, in particular, to the following—
(a)
whether it would have been reasonable and practicable for the party by whom the evidence was adduced to have produced the maker of the original statement as a witness;
(b)
whether the original statement was made contemporaneously with the occurrence or existence of the matters stated;
(c)
whether the evidence involves multiple hearsay;
(d)
whether any person involved had any motive to conceal or misrepresent matters;
(e)
whether the original statement was an edited account, or was made in collaboration with another or for a particular purpose;
(f)
whether the circumstances in which the evidence is adduced as hearsay are such as to suggest an attempt to prevent proper evaluation of its weight.

Question 10

Which Rule deals with attacks on the credibility of an absent witness?

Answer 10

CPR 33.5

[you have to give notice of your intent to attack credibility]

Question 11

What is the deadline for telling a party adducing hearsay evidence that you intend to call her for cross-examination or attack her credibility?

Answer 11

CPR 33.4 and 5

14 days after receiving notification of intention to adduce hearsay evidence.

Question 12

Which Rule imposes special requirements to adduce evidence that is not a witness statement, expert report or oral evidence?

Answer 12

CPR 33.6 - Use of plans, photographs and models as evidence

Question 13

What must a party do to adduce photographs or models as evidence?

Answer 13

CPR 33.6

Give notice at least 21 days before the hearing

Question 14

Which Rule imposes special requirements to adduce evidence that is not a witness statement, expert report or oral evidence?

Answer 14

CPR 33.6 - Use of plans, photographs and models as evidence

Question 15

What is the rule on proving a past criminal offence in a civil claim?

Answer 15

Section 11 Criminal Evidence Act 1968
In any civil proceedings in which by virtue of this section a person is proved to have been convicted of an offence by or before any court in the United Kingdom…
(a)
he shall be taken to have committed that offence unless the contrary is proved; and
(b)
… the contents of any document which is admissible as evidence of the conviction … shall be admissible in evidence for that purpose.

Question 16

Which provision deals with proving a past criminal offence in a civil claim?

Answer 16

Section 11 Criminal Evidence Act 1968

Question 17

When is notice of intention to rely on hearsay evidence deemed served, where the hearsay evidence is the evidence of a witness who will give oral evidence?

Answer 17

CPR 33.2(1)(a)

Notice is deemed served when the parties exchange witness statements.

Question 18

What is the deadline for serving notice of intention to adduce hearsay evidence for category 3 hearsay?

Answer 18

No later than the latest date for serving witness statements.